Court’s Approval of Obamacare Shows Contempt for the Constitution

Last week’s marathon speech-fest (it wasn’t really a filibuster) from Senator Ted Cruz probably won’t do much to change the dynamic of politics in Washington or to stop Obamacare from becoming the last brick in the wall of social democracy separating Americans from their traditions of self-reliance and local community control. But, to someone interested in the constitutional basis of such things (there are a few of us left), it serves as of a reminder of how we got to this point.

First, what point exactly? The point at which a significant number of members of Congress feel compelled by angry “activist” constituents to oppose a program they may or may not like, but generally see as the natural, inevitable extension of decades of government expansion. The point at which “responsible” members of Congress openly criticize and threaten their colleagues for “obstructing democracy” by putting constituents’ demands above the demands of the mainstream media and academe to “make Washington work.” The point many of us recognize as the point of no return, at which we cease to be the Constitutional republic we once were.

And how did we reach this point? From a constitutional perspective, Obamacare was made possible, if not necessary, through the twisting of our Constitution beyond all rational bounds of interpretation, to allow for an entirely irrational reading of the powers of our federal government, and of the President in particular.

Truly awful Supreme Court decisions have become common enough that few people even remember that Chief Justice John Roberts saved Obamacare from its well-deserved doom by finding that the penalty imposed by the government on anyone failing to buy health insurance is actually a “tax.” That bit of fancy footwork allowed Roberts to pretend that Obamacare is not the radical departure from constitutional principles that it truly is. Never before (but certainly quite often from here on out) had the federal government gone so far as to actually force Americans, on pain of punishment (fines, remember, can always mean jail time if not paid) to purchase a particular good. Now we all must, whatever our beliefs, needs, or means, participate in the crooked market for healthcare created by the Obamacare legislation.

One could, of course, trace back this ludicrous decision and its enabling of an overreaching federal government to a whole series of previous decisions allowing and even requiring Washington to order our lives for us. But the point is that today any reading of the Constitution that “sounds good” and prevents “gridlock” by allowing those in power to extend the reach of government, is taken to be constructive and, well, constitutional.

Such a charge may sound odd. After all, for decades, now, “civil libertarians” have demanded that the Court twist the meaning of the Constitution to prevent the government from acting in ways they believe might violate some kind of individual right. This is how we got decisions protecting flag burning, nude dancing and other forms of “expression” courts have pretended emanate from freedom of speech. But we have long since left behind the era during which constitutional theorists saw protecting individual people as purely a matter of stopping governmental action. The goal for many years now has been to transform society into something more fair, equal, and safe (by the standards of these “progressive” theorists) by using the courts to force the government to act in certain, affirmative ways formerly blocked by the forces of tradition and popular control over government.

Where for some time the claim was that individuals would be “liberated” from governmental oppression by an expansive reading of the First Amendment and other sources of rights, today groups (women, racial minorities, and homosexuals) are to be “liberated” by decisions demanding that laws and common, often purely private, practices be changed so that they will be given the status and treatment they demand. Laws and private forms of action now must be made to conform to new, constitutionalized standards of fairness.

Most Americans are at a loss at how to oppose such claims, being by nature committed to fairness and, increasingly, equality. Moreover, the progressives have a set of claims they are willing to use with extreme prejudice in making their case, namely that we never would have gotten rid of segregation, or secured even a modicum of equal rights for women, had it not been for the “living constitution” and the judges who were willing to “update” its provisions in keeping with fundamental fairness. Thus, those of us concerned, for example, that private individuals’ rights to live their faith are being taken away by Obamacare’s contraception mandate (which includes the abortion-inducing “morning after pill”) are painted as extremists who would deny African Americans their right to vote and otherwise participate as full members of our society.

But is it true? Did the Supreme Court “save us” from segregation and other unjust public practices? An important book by a different kind of progressive, Gerald Rosenberg, called The Hollow Hope: Why Courts Can’t Bring about Social Change argues quite the opposite. Rosenberg argues, quite powerfully, that if you look at actual changes in our society, including desegregation, and other areas of progress in the realm of civil rights, the view that the Supreme Court brought about social change through cases like Brown vs. Board of Education is simply wrong.

What really brought about significant improvement in the treatment of minorities in our laws and social institutions was not the imposition of sweeping generalities through Supreme Court pronouncements, but concerted public action. Not the self-satisfied opinions of 9 judges in black robes, but the marches, the sacrifices, and the conversations that took place during the civil rights era finally put us on the road toward a more just society.

The biggest factor, Rosenberg points out, was the Civil Rights Act. That is, as one should expect, and as one should hope, we started getting our house in order on race when our lawmakers started having real debates, public policy debates, about what is just, what kind of country we want to be, and how we can achieve that through legislation. The results were far from perfect and we still have a long way to go in race relations. But that in itself is a sign that the Supreme Court’s abstract pronouncements and piecemeal commands for public action are ill-designed to solve a problem with deep roots in our society and culture as well as our government.

And what does all this have to do with Obamacare? The Roberts decision salvaging Obamacare was made possible by the increasing contempt in which our legal elites hold the language of the Constitution. The Roberts could not have happened but for a series of decisions rooted in the belief that judges can and should change the fundamental meaning of that document in order to foster “progress” by expanding individual “rights” and governmental powers beyond any rational reading of the document itself.

Sadly, the record of Supreme Court justices in protecting real, important rights is spotty at best, and getting spottier in this era of NSA spying, secret detentions, and IRS vendettas. In fact, an honest appraisal of the Supreme Court’s activism would show that it has done more harm than good to basic principles like the rule of law, due process, and even rights, properly understood. But one thing such decisions have accomplished is a basic contempt for principles like limited government, federalism, and the separation of powers—all of which are violated by Obamacare, all of which are essential to the structure and purpose of our Constitution, and none of which is likely to survive even a short stint under our budding social democratic regime.

It all began with claims that our Constitution must be allowed to “live” and “breathe.” But a constitution can’t live and breathe, it can’t move in the direction we might like. It only appears to move if judges hoist it into the air and manipulate its various limbs to give it the appearance of life. And what does this make the judges? One thing is for sure, such actions can’t make our Constitution live, they can only sap the life from our society.

Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

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